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2008, 06-23 Panhandling - Public Awareness CampaignMemorandum To: Bill Gothmann, City Council Member From: Mike Connelly, City Attorney CC: Date: June 23, 2008 Re: Panhandling — public awareness campaign At the request of the City Council, our office has drafted the following memorandum in relation to potential approaches the City may take toward panhandling. Specifically, the Council requested more information on the efficacy of a public awareness campaign. 1. Effectiveness of Public Awareness Campaign Due to the many factors that influence the level of panhandling and the lack of long -term data on panhandling, it is difficult to accurately gauge the effectiveness of public awareness campaigns. Additionally, most problems and the associated education campaigns deal with centralized panhandling in downtown areas. Thus, data on city -wide campaigns is very limited. In Washington, staff could find no City that had engaged in a large scale public awareness campaign. However, there were other business districts and non - Washington cities with public awareness campaigns. Below is a list of cities with different types of campaigns and discussion about their effectiveness. • Spokane — Downtown Spokane Partnership maintained a program downtown asking for donations in drop boxes located at various businesses. However, this program was modified and has become the "Give Real Change, Not Spare Change" program. This is a "prototypical" program in that it is based on brochures handed out in the downtown area in an attempt to combat downtown shoppers from giving money to panhandlers. This program is combined with the Downtown Spokane Security Ambassadors program, a service that provides non - police assistance to downtown customers for a wide range of problems, including encounters with aggressive panhandlers. Statistics have not been kept, though in talking with Todd Babcock, a City Council assistant who is working on the panhandling issue, it appears that Spokane is attempting to adopt an ordinance similar to the recently enacted Tacoma provision that prevents solicitation in certain areas and in certain forms. See RCA dated May 22, 2007 for an analysis of time, place and manner restrictions. Spokane is waiting to see how the Tacoma statute works, and whether it will withstand legal challenge before adopting such a provision. • Seattle — Downtown Seattle Association and Metro Improvement District (MID) in the City of Seattle started a poster and sign campaign in January of 2007. The campaign, entitled "Have a heart, Give Smart," was directed at the downtown businesses, the public, and panhandlers to educate them on panhandling. The program involves use of posters and handouts placed in downtown businesses. "Give Smart" is supposed to encourage persons to give to local social organizations rather than individuals. As part of the campaign, MID began keeping detailed records regarding panhandling solicitations. While statistics for the first quarter of 2007 showed a 38% increase in panhandling solicitations from the previous year, the number steadily declined and showed a 32% decline for the month of September 2007 as to September 2006, and a total decline of 14% for the third quarter of 2007. The police enforce an aggressive panhandling provision for threatening begging that is almost identical to the City of Spokane Valley provision. • Portland, Oregon — Portland Business Alliance started a "Real Change, Not Spare Change" program a little over a year ago. This program involved placing ten "change meters" throughout Portland that also contain brochures and information regarding panhandling. It is concentrated in areas with high foot traffic and perceived panhandling problems. Additionally, the program encourages people to give to the meters as the money received is matched by the Portland Business Alliance and distributed to local social organizations. Statistics are sparse, especially since the program involves a large area. However, the Business Association does have plans to increase the number of meters and are also looking at alternatives to increase the matching money in order to provide more social programs. A link to this program is www.portlandalliance.com/downtown services /real- chan eg html • Nashville, Tennessee — Again, started within the last year, the Downtown business administration started a poster and brochure educational program. There is no hard evidence about the effectiveness of the program, though at least some downtown business owners feel there are fewer panhandlers downtown. Nashville was going to adopt a time, place, and manner restriction provision, but after large pressure from various social groups, has decided to wait and see how the education campaign works. • Evanston, Illinois — Evanston has a comprehensive program which was specifically developed as a reaction to a perceived panhandling problem in the downtown area. The program involves city personnel, police, EvMark, which is a downtown marketing association, and the Evanston Chamber of Commerce to educate downtown businesses, customers, and local college students about the negative effects of giving to panhandlers. The program utilizes downtown posters and handouts to promote donations to local social service groups rather than to individual panhandlers. In his five year experience with the program, Sergeant Dennis Preedle feels that there "seems" to be a reduction of the number of regular panhandlers. However, he is not sure that there has been a major impact in the overall number of panhandlers. Sergeant Preedle feels that at least part of the reason for this, however, is due to the yearly crop of new incoming Northwestern University students who have not been educated by the program. • Cincinnati, Ohio — While Cincinnati does not have a significant public education program, they do have a licensing statute and social outreach program that are notable. Though the statistics regarding the effectiveness of licensing are largely anecdotal, it is clear that there are typically upwards of 100 registrations yearly. However, some of these are from people registering as part of a protest group. Additionally, there are normally 100+ arrests made for violating the panhandling law (though not all for lack of a license). However, without hard data, the anecdotal evidence suggests that registration has only shifted where the panhandlers operate and has not significantly impacted the problem. Not surprisingly, the social outreach program, which was funded by the Downtown Partnership at around the cost of $50,000, has been the most effective program because the workers get panhandlers help for any addictions, help them find transitional housing, education, and job opportunities. Thus, as one police officer noted, the outreach is really a "cure" as opposed to a part-time band -aid that the law and arrests provide. 2. Legality of Licensing/Permitting Scheme for Panhandlers Council has also asked about the legality of a licensing/permitting scheme for panhandling. Staff has not found any city in Washington that has a panhandling licensing/permitting scheme. However, maintaining such a program would be difficult unless the scheme did not place an excessive financial burden on applicants, did not allow unfettered government discretion or delay in granting/denying permits, and allowed expedited judicial review of denials of permits. Additionally, any measures that punish panhandlers for not having a license cannot act as a form of restriction or prohibition of the speech. Additional practical considerations are that such schemes may not effectively reduce panhandling, could by costly (through administration of issuing permits and enforcement), and may be difficult to enforce. In Washington, free speech is afforded greater protection than under the U.S. Constitution. Ino Ino, Inc. v. City of Bellevue, 132 Wash. 2d 103, 117 (1997). Panhandling is a form of protected speech, and as such, receives strong protection. City of Seattle v. McConahy, 86 Wash. App. 557, 568 (1997). Prior restraints, or restricting/prohibiting the speech in advance of publication, are per se unconstitutional when imposed on protected constitutional speech (of which panhandling/solicitation is a class). JJR, Inc. v. City of Seattle, 126 Wash. 2d 1, 6 (1995); O'Day v. King County, 109 Wash. 2d 796, 804 (1988). Thus, when looking at a licensing scheme that involves protected speech, the relevant question is whether it constitutes "prior restraint ". Prior restraints are "official restrictions imposed upon speech or other forms of expression in advance of actual publication...." JJR, 126 Wash. 2d at 6, quoting Seattle v. Bittner, 81 Wash. 2d 747, 756 (1973). Because the licensing scheme cannot effectively ban the speech, the restrictions (such as requiring the permit, or only allowing licensed panhandlers to operate in certain locations) must be based on valid time, place, and manner restrictions. See RCA dated May 22, 2007 regarding requirements for valid time, place and manner restrictions. Additionally, purely subjective criteria, such as considering character, may only be considered in granting an application where there is a rational basis for doing so. Most likely there is no rational basis for considering character when looking at panhandlers. Additionally, the licensing scheme must have provisions that specifically require licenses to be considered — and thus granted or denied — without "undue delay" in a "reasonable time ". City of Littleton v. Z.J. Gifts, 541 U.S. 774, 781 (2004). Finally, the commercial exploitation of material protected by the First Amendment may properly be subject to a licensing fee. However, the fee must be a regulatory measure reasonably related to costs of administration and enforcement of the statute, and must not act as a bar to allowing the speech. See Murdock v. Pennsylvania, 319 U.S. 105 (1943). As those. costs of regulation must be prescribed in advance, they must of necessity be based upon estimates which it is the right and duty of the licensing authorities to make. See Seattle v. Barto, 31 Wash. 141 (1903). Because of the nature of panhandling, licensing fees would most likely have to be very small or even free ((Durham, North Carolina, and Cincinnati, Ohio, have free license or charge $20 for licenses). Post license revocation/suspension cannot act as a restriction on speech and if it is used as punishment or prohibits the activity completely then it will be prior restraint. Finally, as noted above, staff could not find a Washington city with a licensing scheme for panhandling. Several cities in other states (which have different laws and constitutional limitations) have enacted panhandling licensing schemes. Durham, North Carolina, has a licensing statute that restricts solicitation in certain areas (due to safety concerns). See Attachments to RCA dated January 15, 2008. Under the Durham code, people wanting to solicit must get a license that acts more as an ID than anything else. It appears that approximately 100+ people register each year, though that number includes any charitable group trying to solicit as well (which would include the Fire Department's "fill the boot" campaign). Durham's code has not been challenged in court. Cincinnati, Ohio, has a similar provision, though their code was recently challenged on constitutional grounds. A federal district court found that the plaintiffs might prevail at trial and thus summary judgment was not appropriate. Henry v. City of Cincinnati, 2005 WL 1198814 (S.D. Ohio 2005). However, the parties have entered into settlement negotiations and the court may not reach the issue of whether that law is constitutional. While a licensing scheme is possible, there are strict requirements. The scheme must not prohibit the protected speech, and restrictions must still be based on reasonable time, place and manner requirements. Additionally, it appears that it would be difficult to administer from a city standpoint. 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